CENTENNIAL 


OF THE 

Supreme Court of Alabama 

ANNUAL ADDRESS 


BEFORE 

Alabama State Bar Association 

AT 

Birmingham, Alabama 



April 30, 1920 

By JOHN C. ANDERSON 


Wilson Print, Montgomery. 








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ANNUAL ADDRESS BY 

HON. JOHN C. ANDERSON 

OF MONTGOMERY 


CENTENNIAL OF THE SUPREME COURT OF ALABAMA 


When requested by your Executive Committee to read 
a paper at this meeting of your Association, I accepted the 
invitation, and concluded that as this was the one hun¬ 
dredth anniversary of the establishment and organization 
of our Supreme Court, in fact our judicial system, that a 
paper on this subject would not only be of interest to the 
profession, but would be most appropriate at this particu¬ 
lar time. It was my intention to not only give a sketch 
of the Supreme Court since its first session in May, 1820, 
but to say something about the trial courts, the judges 
thereof and some of the leading members of the Bar; but 
after entering upon the preparation of this address, I real¬ 
ized that this would extend my remarks to such a degree 
as to perhaps tax your patience, and I have even abandon¬ 
ed a biographical sketch of the members of the Supreme 
Court. It is a deplorable fact that Alabama has no com¬ 
plete history of her Bench and Bar, and it is, therefore, 
difficult to obtain accurate data as to many of our most 
eminent lawyers and jurists whose acts and deeds have 
added lustre to our jurisprudence, and such history should 
not only be supplied but should be a labor of love by some 
member of this Association. (1) 

By an Act of Congress, approved March 2, 1819, the then 
territory of Alabama was admitted as a State and the time 
for the election of delegates to the first Constitutional 
Convention was fixed for the first Monday and Tuesday of 
the following May and were apportioned among the coun¬ 
ties then existing, as follows: Madison 8 representatives, 
Monroe 4, Blount 3, Limestone 3, Shelby 3, Montgomery 


3 





2, Washington 2, Tuscaloosa 2, Lawrence 2, Franklin 2, 
Cocato 2, Clark 2, Baldwin 1, Cahaba 1, Conecuh 1, Dallas 
1, Marengo 1, Marion 1, Mobile 1, Lauderdale 1, St. Clair 
1, and Autauga 1. 

The delegates so elected assembled at Huntsville and on 
August the 2nd finally adopted the Costitution of 1819, and 
which was signed by J. W. Walker, President, and John 
Campbell, Secretary. 

Article 5 of said Constitution relates to the judicial de¬ 
partment and vested the powers in one Supreme Court, 
circuit courts to be held in each county in the State, and 
inferior courts of law and equity, to consist of not more 
than five members. It also authorized the Legislature to 
provide for chancery courts, a probate court for each 
county and such number of justices of the peace in each 
county as was deemed necessary. We have had several 
Constitutions since then, but there have been but few radi¬ 
cal changes in the judicial system, except that the more 
recent ones are mandatory as to probate, and justice of the 
peace courts and the establishment of which is not left to 
legislative discretion. The first Constitution also author¬ 
ized the circuit judges to constitute the Supreme Court, 
while the latter ones provide for separate and distinct 
judges of all courts. The Constitution of 1819 also pro¬ 
hibited the appointment of or continuance in office of any 
judge who shall have arrived at the age of seventy years, 
while there is no such limitation in the more recent Consti¬ 
tutions. Section 13, Article 5, of the Constitution of 1819 
also provided that the judges of the several courts in the 
State should hold office during good behavior. This sec¬ 
tion, however, was amended in 1830 and the term of office 
was fixed for six years, which is the term under the pres¬ 
ent Constitution and which has beeq the term ever since 
the adoption of said amendment. The principal change 
since that time being with reference to the manner of elect¬ 
ing judges, and which will be noted later on. 

It has been universally believed, that the amendment to 


4 


the Constitution of 1819, cutting down the life term of of¬ 
fice to six years, was the result of public dissatisfaction 
with the Supreme Court as it then existed because of de¬ 
cisions enforcing contracts for the payment of excessive 
interest, the statute against usury having been repealed. 
Indeed, impeachment charges were brought against the 
judges, and vigorously and bitterly prosecuted, the mov¬ 
ing spirit being one Kelly, a man of prominence and a vic¬ 
tim of some of said contracts. For an interesting and in¬ 
structive account of the trial and incidents leading up to 
and connected with same, I refer to a paper read by the 
Hon. Henderson M. Somerville before the State Bar As¬ 
sociation a few years since, and which should be preserved 
and perpetuated as a part of our judicial history. To the 
credit of those judges, they were not only vindicated but 
three of them composed the first real Supreme Court as 
differently constituted by the subsequent act,of reorgani¬ 
zation. It should also be said to the credit of the people 
that, while jealous of the power of the life tenure of office 
after these judges were vidicated many of them were kept 
in office and were honored and respected. 

SUPREME COURT. The Constitution of 1819, under 
which the State was admitted to the Union, provided 
among other things that the judicial power should be vest¬ 
ed in a Supreme Court, together with such inferior courts 
as might be constituted by the general assembly. The 
judges of the circuit courts were required to serve as mem¬ 
bers of the Supreme Court, stated meetings being held at 
the seat of government to hear causes on appeal. The 
judges of the Supreme Court were for many years elected 
by the general assembly—until 1868, in fact—when the re¬ 
construction constitution adopted that year brought in the 
very radical change in the appointment by having them 
elected at a general election by the people. 

The first term of the Supreme Court was held at Ca- 
haba, then the State Capital, on the second Monday in May, 
1820. There were present Hons. C. C. Clay, Reuben Saf- 


5 


fold, Henry Y. Webb and Richard Ellis. Hon. A. S. Lips¬ 
comb, the remaining circuit judge, was absent at this ses¬ 
sion. Hon. C. C. Clay was appointed chief justice. In 
1821 a sixth circuit was created, of which Hon. Anderson 
Crenshaw was elected judge. Passing in hurried review 
the membership of the court from its foundation as thus 
indicated, the records show a large number of names 
familiar to the judicial history of the State. Some of these 
have left the impress of their thought and character upon 
the wider field of American law. Judge Webb died in 
1823 and was succeeded by Hon. Henry Minor who was in 
his turn succeeded, as soon as the general assembly con¬ 
vened, by Hon. John Gayle. Chief Justice Clay resigned 
in 1823 and was succeeded in that office by Judge Lips¬ 
comb. 

At the election held in 1825, the first regular election by 
the general assembly under the Constitution since the cre¬ 
ation of the Supreme Court, the following circuit judges 
were elected: Hons. A. S. Lipscomb, Reubeu Saffold, John 
Gayle, John White, John M. Taylor and Anderson Cren¬ 
shaw. In 1828 a seventh circuit was established, of which 
Hon. Sion L. Perry was elected judge. In the same year 
Judge Gayle resigned and Hon. Henry W. Collier was 
elected to succeed him. 

In 1832 the court was entirely reorganized and made a 
separate court, to consist of three judges with terms of 
office for six years. Judges Lipscomb, Saffold and Taylor 
were elected, Judge Lipscomb again receiving the appoint¬ 
ment as chief justice. In 1834 Judge Taylor resigned and 
was succeeded by Hon. Harry I. Thornton. In the latter 
part of the same year Judge Lipscomb resigned and was 
succeeded by Hon. Henry Hitchcock, Judge Saffold being 
promoted to the post of chief justice. In 1836 Hon. A. F. 
Hopkins succeeded Judge Thornton, and in the same year 
Judge Saffold resigned, being succeeded by Hon. Henry 
W. Collier, Judge Hitchcock becoming chief justice. In 
1837 Judge Hitchcock resigned and was succeeded by Hon. 


6 


Henry Goldthwaite, Judge Hopkins being advanced to the 
chief justiceship. In June of the same year Chief Jus¬ 
tice Hopkins resigned, being succeeded by Hon. J. J. Or¬ 
mond, Judge Collier becoming chief justice. 

In 1843 Judge Goldthwaite resigned and was succeeded 
by Hon. C. C. Clay. Judge Goldthwaite had resigned to 
become his party’s candidate for Congress in the Mobile 
district. After a contest of memorable vigor and dash, he 
suffered a defeat and then became a candidate for his old 
seat on the bench. He defeated Judge Clay before the gen- 
ral assmbly. He died of yellow fever in 1847, and was 
succeeded by Hon. Edward S. Dargan. Judge Ormond de¬ 
clined a re-election and was succeeded by Hon. William 
P. Chilton. In 1849 Judge Dargan succeeded Judge Col¬ 
lier as chief justice, Hon. Silas Parsons taking the place of 
associate vacated by Dargan. Parsons was succeeded in 
1851 by Hon. Daniel Coleman, who was in his turn succeed¬ 
ed by Hon. George Goldthwaite. In the same year, 1851, 
the number of judges was increased to five, Hon. David 
P. Ligon and John D. Phelan being the additional mem¬ 
bers. In 1852 Chief Justice Dargan resigned and was suc¬ 
ceeded in that office by Judge Chilton, Hon. Lyman Gib¬ 
bons being appointed associate justice. In 1853 the mem¬ 
bership of the court was reduced by law to three, and Hon. 
Samuel F. Rice became the third member. In January, 
1856, Judge Goldthwaite succeeded Judge Chilton as chief 
justice, and Hon. A. J. Walker became an associate jus¬ 
tice. Judge Goldthwaite resigned almost immediately and 
was succeeded by Hon. George W. Stone. Judge Rice be¬ 
came chief justice. Judge Rice, resigning in Jaanuary, 
1859, was succeeded by A. J. Walker, Hon. R. W. Walker 
receiving the appointment thus vacated. The war wrought 
no change to speak of in the judicial fabric during the ex¬ 
istence of actual hostilities. In 1863, Judge R. W. Walker 
resigned and was succeeded by Hon. John D. Pelham. 
The Legislature that convened at the close of the war 


7 


elected, as members of the Supreme Court, Hons. A. J. 
Walker, William M. Byrd and Thomas J. Judge. 

By the “reconstruction” constitution of 1868, the elec¬ 
tion of judges was committed to the people, and on an elec¬ 
tion held Hons. E. W. Peck, Thomas M. Peters and B. F. 
Saffold were returned as judges of the Supreme Court. In 
1873 Judge Peck resigned, Judge Peters became chief jus¬ 
tice, and Hon. R. C. Brickell was appointed to fill the va¬ 
cancy. At the general election of 1874 Judge Brickell was 
elected chief justice, and Hons. Thomas J. Judge and Amos 
R. Manning associate justices. In March, 1876, Judge 
Judge died and was succeeded by Hon. George W. Stone. 
In 1880 Judge Manning died and was succeeded by Hon. 
Henderson M. Somerville. On October 25, 1884, Judge 
Brickell resigned, Judge Stone becoming chief justice, and 
Hon. David Clopton was appointed associate. In 1889 the 
number of judges was increased to four, and Hon. Thomas 
N. McClellan, then serving as attorney general, was ap¬ 
pointed to the new place. In July, 1890, Judge Somerville 
resigned to accept a post under the general government 
and Hon. Thos. W. Coleman was appointed to succeed 
him. In February, 1891, the number of judges was once 
more raised to five, and Richard W. Walker was appointed 
to the' new judgeship. Judge Clopton died in 1892, and 
Judge W. S. Thorington was appointed to succeed him. 
At the August election, 1892, the following judges were 
elected: Chief Justice, George W. Stone; Associate Jus¬ 
tices, Thomas W. Coleman, Thomas N. McClellan, J. B. 
Head and Jonathan Haralson. 

In 1898 Thomas N. McClellan was elected Chief Justice 
and Jonathan Haralson, John R. Tyson, H. A. Sharpe and 
Jas. R. Dowdell were elected associates. The Legislature 
of 1903 increased the number of justices from five to seven 
to go into effect after the general election of 1904. In the 
election of 1904 Thomas N. McClellan was elected Chief 
Justice and Jonathan Haralson, John R. Tyson, James R. 
Dowdell, R. T. Simpson, John C. Anderson and N. D. Den- 


8 


son were elected Associates. In order to comply with the 
Constitution as to the arrangement of the terms, and upon 
casting lots, Anderson and Denson got six-year terms, 
Haralson and Simpson four years and Tyson and Dowdell 
two years. Thomas N. McClellan died in 1906 and S. D. 
Weakley was appointed to succeed him until the next gen¬ 
eral election, at which John R. Tyson was elected Chief 
Justice and Jas. R. Dowdell and Thomas C. McClellan 
were elected Associates. In 1908 R. T. Simpson and J. J. 
Mayfield were elected. In 1909 John R. Tyson resigned 
and James R. Dowdell was appointed to succeed him, A. 
D. Sayre of Montgomery, being appointed to succeed Dow¬ 
dell as Associate. In September, 1909, N. D. Denson re¬ 
signed and A. A. Eva'ns of Barbour, was appointed to suc¬ 
ceed him. Ormond Somerville succeeded A. A. Evans in 
1910. R. T. Simpson died in 1912; and was succeeded by 
Edward de Graffenreid, Judge William H. Thomas suc¬ 
ceeding Judge de Graffenreid in 1914. Chief Justice Dow¬ 
dell resigned in January, 1914, and John C. Anderson be¬ 
came Chief Justice, L. D. Gardner succeeding Anderson 
as Associate Justice. Judge Mayfield resigned in 1919 to 
become Code Commissioner, and was succeeded by Joel B. 
Brown. The Court at present is composed of John C. An¬ 
derson, Chief Justice; Thomas C. McClellan, A. D. Sayre, 
Ormond Somerville, L. D. Gardner, W. H. Thomas and J. 
B. Brown, Associate Justices. 

Taking up some of the curious, if not important, facts 
touching the composition of the Supreme Court, note may 
be made of the nativity of the Chief Justices. Clay, Hop¬ 
kins, Collier and Stone were born in Virginia; Lipscomb 
and Rice, in South Carolina; Saffold, in Georgia; Hitch¬ 
cock, in Vermont; Dargan, in North Carolina; Chilton, in 
Kentucky; Goldthwaite, in New Hampshire; Walker and 
Peters, in Tennessee; Peck, in New York; Brickell, Mc¬ 
Clellan, Weakley, Tyson, Dowdell and x^nderson, in Ala¬ 
bama. 

I The following Judges of the Supreme Court were at one 

9 


time or another judges of the circuit court: Henry W. 
Collier, Daniel Coleman, E. S. Dargan, Jno. D. Phelan, 
George W. Stone, George Goldthwaite, Lyman Gibbons, 
B. F. SafFold, Jas. B. Head, John R. Tyson, James R. Dow¬ 
dell, John C. Anderson, N. D. Denson and A. A. Evans, 
while Judges Haralson, Sharpe, Mayfield, Sayre and 
Thomas each served as county or city court judges. 

The following Judges of the Supreme Court also served 
as chancellors: Peck, Ligon, Byrd, Crenshaw, A. J. Wal¬ 
ker, Thos. W. Coleman, Jas. R. Dowdell and L. D. Gard¬ 
ner. It will be observed that James R. Dowdell is the only 
member who had previously served both as circuit judge 
and chancellor. 

Judges de Graffenreid and Brown had each served upon 
the Court of Appeals before becoming members of the Su¬ 
preme Court. 

Judge George Goldthwaite became a circuit judge after 
leaving the Supreme Court, Crenshaw a chancellor and 
Sharpe judge of the city court. 

The following Supreme Court Judges became Governor 
of the State: C. C. Clay, John Gayle and Henry Collier; 
while C. C. Clay and George Goldthwaite became United 
States Senators also. 

The surviving ex-members of the Court are Thomas W. 
Coleman, R. W. Walker, S. D. Weakley, John R. Tyson, 
J. R. Dowdell, N. D. Denson, A. A. Evans, Edward de Graf¬ 
fenreid and Jas. J. Mayfield. 

It should also be noted that the people of Alabama have, 
as a rule, been free from sectionalism or partisanship in 
the selection of the members of their highest Court. Hitch¬ 
cock and both of the Goldthwaites were from New Eng¬ 
land; Peck and Gibbons from New York, and Manning 
from New Jersey; while Hopkins, Chilton, Thornton, Or¬ 
mond, R. W. Walker, and perhaps others, though Whigs, 
were selected by democratic governors or legislatures, and 
Brickell, the first democratic member of the Court after 


10 


“reconstruction,” was appointed by a republican gov¬ 
ernor. 

Another incident worthy of note is the fact that when 
Judge Stone was first elected ,a member of the Court by 
the Legislature in the ’50’s, Brickell, Clopton and others 
were his opponents, and on the final ballot Stone was elect¬ 
ed over Brickell by the narrow margin of two votes, and 
when Judge Stone was replaced upon the Court after the 
war Brickell was Chief Justice, and when Brickell resign¬ 
ed and Stone was appointed to succeed him, Clopton was 
appointed an Associate to succeed Judge Stone. 

Again, C. C. Clay, first Chief Justice, resigned from the 
Court in 1823, subsequently becoming Congressman, Gov¬ 
ernor and Senator, and in 1843, upon the resignation of 
Henry Goldthwaite, who resigned in order to run for Con¬ 
gress from the Mobile District, was replaced upon the 
bench and Henry Goldthwaite defeated him before the 
next Legislature. The result was, that after having filled 
practically every high office in the State, and being re¬ 
placed where he started, he was subsequently defeated. 
The result was not due, however, to the unpopularity of 
Governor Clay, but to the fact, no doubt, that having been 
in politics for twenty years he was not as well qualified 
for the office as Judge Goldthwaite who had been con¬ 
stantly on the bench for years, with the exception of the 
few months he spent in prosecuting his canvass for Con¬ 
gress. 

While Alabama has had twenty Chief Justices during the 
past hundred years, the service of many of them has been 
quite brief. It seems that the salary was so small, at least 
during the first half of the century that most of them, after 
attaining the position, retired in order to practice law or 
run for offices less onerous and laborious. Lipscomb, Col¬ 
lier and A. J. Walker are the only Chief Justices who 
served over two or three years, during the first half of the 
century, the other serving only one or two years, while 
Judge George Goldthwaite occupied the office but thir- 

11 


teen days. On the other hand, Brickell, Stone and T. N, 
McClellan consumed, as Chief Justices, the greater part 
of the last half of the century. Judge Stone served the 
longest period of any member of the Court, having served 
twenty-four years, six years before and nearly eighteen 
after the war, though there was an interim in his career; 
but not counting the service he rendered before the war, 
his last period was the longest continuous service, not¬ 
withstanding he was sixty-six years of age when coming 
on the bench the last time. Thos. N. McClellan comes next 
in length of service, as he served continuously as Asso¬ 
ciate and Chief Justice from 1889 to February, 1906. It is 
also a remarkable fact that out of the twenty Chief Jus¬ 
tices the State has had, George W. Stone and Thos. N. Mc¬ 
Clellan were the only two who died in judicial harness, and 
of the great number of Associatee Justices we have had 
H. Goldthwaite, Thos. J. Judge, Amos R. Manning, David 
Clopton and R. T. Simpson seem to have been the only As¬ 
sociates who died while on the bench. 

Mention should also be made of the Associates who 
served a period of approximately ten years or longer, and 
whose work is lasting and efficient, and who are John J. 
Ormond, Henry Goldthwaite, Henderson M. Somerville, 
David Clopton, Thos. W. Coleman, Jonathan Haralson, 
Thos. C. McClellan, J. J. Mayfield, A. D. Sayre and Ormond 
Somerville. 

WHILE THE PEOPLE HAVE BEEN JEALOUS OF 
THEIR RIGHTS AS TO THE SELECTCION OF 
JUDGES, THE PRIVILEGE HAS SELDOM BEEN 
ABUSED. (2) 

The people not only disapproved the life tenure, but have, 
for the last fifty-two years, exacted the right to vote di¬ 
rectly for their judges. Not only was this the case un¬ 
der the Constitution of 1867 and 1875, but the Constitu¬ 
tional Convention of 1901, composed of one hundred and 
fifty members, over three-fifths of same being lawyers, 
curtailed the appointive power in case of vacancies from 


12 


the unexpired term to the next general election occurring 
more than six months after the vacancy. On the other 
hand, however, they have been most patriotic and conserva¬ 
tive in dealing with the Judiciary and have not been swept 
off their feet by fads, prejudices or political upheaval. As 
above noted, after the judges whom Kelly sought to im¬ 
peach had been vindicated, they were all re-elected, not¬ 
withstanding it is thought that the incident brought about 
the amendment of the Constitution abolishing the life 
tenure. In the year 1841 when the Supreme Court was 
composed of Collier, Ormond and Henry Goldthwaite, a 
decision was rendered relating to certain cotton transac¬ 
tions with the State Bank which was most unpopular, and 
brought forth a scurrilous attack upon the majority of the 
Court, Collier and Ormond, Goldthwaite having dissented, 
but at the next election they were both re-elected, and 
Chief Justice Collier was, a few years thereafter, elected 
Governor by an almost unanimous vote. 

Again, many of us can recall the political upheaval of 
1892 which almost amounted to a revolution among the 
white people of the State. The convention plan then ex¬ 
isted, the regular or organized democracy nominated a full 
ticket, and a certain faction bolted and put out an oppo¬ 
sition ticket which swept nearly every white county in the 
State, the regular ticket being elected by large majori¬ 
ties from the black counties, and which fact no doubt has¬ 
tened the Constitutional Convention for the elimination 
of a certain class of voters, and which in the end led to 
the primary system for the nomination of our officers. 
Yet, this bolting faction, no doubt representing a majority 
of the white voters of the State, had confidence in the in¬ 
tegrity and ability of Stone, McClellan, Coleman, Head and 
Haralson, the nominees of the organized democracy, and 
did not oppose them, making their fight along other lines 
and against other candidates. The result was, that after 
the ratification of the Constitution of 1901, the primary 
system of nominating officers, including judges, was estab- 

13 


lished and has been adhered to ever'since, except in 1912. 
Every one knows that a democratic nomination is equiva¬ 
lent to an election, and that the general election is but a 
pro forma ratification of the nomination; therefore, in or¬ 
der to meet the spirit, if not the letter, of the Constitu¬ 
tion, a primary election is essential to the selection of 
judges by the people. The voters of Alabama have been 
and ever will be responsive to the advice and suggestion of 
the Bar as to the seleection of judges, and the proper ac¬ 
tivity on the part of the lawyers in their respective coun¬ 
ties will always accomplish results. A few letters or pos¬ 
tal cards from respectable lawyers to a few of the leading 
men in each precinct will nearly always insure favorable 
returns, and the lawyers are largely responsible for the 
nomination of the judges whether by convention or pri¬ 
maries. Do not misunderstand me: I am not pleading for 
a continuation of the primary system from a selfish stand¬ 
point. As an officer, present or prospective, I am su¬ 
premely indifferent either as to the method of selection 
or the result, as I have never felt dependent upon office 
holding for a livelihood, and should the people of Alabama 
see fit to retire me either by a convention or at the polls, I 
will accept the result without a murmur. Nor would I, 
or any other self-respecting judge, hold the position if 
inimicable to a majority of the lawyers of the State; but 
any single member of the Court is a mere atom when 
compared with the perpetuation of a system which is 
essential to the preservation of the integrity and purity 
of the Judiciary; and any judge who holds his commission 
directly from a majority of the unselfish voters of the State 
is bound to be more independent than one who may owe 
his nomination to a clique or a few political leaders who 
may dominate beat meetings and conventions. This, there¬ 
fore, is intended as a mere admonition to the Bar against 
constantly placing themselves on record as being in favor 
of depriving the people of the power to exercise their 
constitutional rights; in other words, from continually in- 


14 


forming them that they are unfit and incapable of select¬ 
ing their judges. As long as you take them into your con¬ 
fidence and let them feel like they are exercising their con¬ 
stitutional right, you will find them responsive and ready 
and willing to yield to your counsel and advice; but should 
you prevail upon the Executive Committee to deprive them 
of a direct voice in the matter, and while they may ac¬ 
quiesce for a short time, the very moment that the im¬ 
pression is created that the politicians, for certain selfish 
interests, are controlling and nominating the Judiciary of 
the State, there will be an uprising like unto a cyclone 
which will sweep from the face of the earth everything 
within its wake. 

Moreover, as we enter upon the second century of state¬ 
hood we confront a new factor in our elections. It will be 
but a few moths before our women will be emancipated 
and will, therefore, have a voice in our future elections, 
and there should not be continued efforts to deprive them 
of their rights after the ratification of the Nineteenth 
Amendment, by compelling them to attend disorderly beat 
meetings and county conventions instead of a legally reg¬ 
ulated primary election for the purpose of expressing their 
choice not only for those who make and execute the laws, 
but for those who enforce and construe them as well. 
Why anyone should be surprised that the right of our 
women to vote will soon be recognized, and why anyone 
has opposed this righteous movement, especially some of 
the women, passeth all understanding. Legislation for the 
last half century has established the separate property 
rights of women and said property has always been taxed 
for governmental purposes, and from the days long before 
the Boston Tea Party, our people have insisted that where 
there is taxation there should also be representation. 
Every avenue has been, in recent years, opened to women. 
They are becoming lawyers, doctors, merchants and teach¬ 
ers. The American Bar Association has opened its doors 
to them. They have filled the positions into which they 

15 


have gone acceptably and well. In peace and in war they 
have shown that in every branch of relief work women are 
not unexcelled in skill, judgment, endurance and courage. 
I have no word of censure for those who have opposed this 
movement, but woman suffrage is now a condition rather 
than a theory, and it is the record of the American lawyer 
to uphold and enforce the law whether entirely acceptable 
to him or not, and I believe that the lawyers of Alabama 
will see to it that this new plan, when incorporated in our 
Federal Constitution, will become effective in spirit as well 
as letter. A careful reading of the cases of Neal vs. Dela¬ 
ware, 103 XJ. S. 370, and Guin vs. United States, 238 U. S. 
362, should dispel all fear that this amendment will destroy 
our present constitutional barriers against the registration 
of the vicious and ignorant voter, male or female. I also 
believe that our women who will exercise their right of 
suffrage, whether heretofore favoring or opposing same, 
will do so intelligently and patriotically. 

I do not wish to impress you, however, with the idea 
that our present plan of nominating judges in a general 
primary is by any means perfect. The trouble is that when 
thrown into a general primary the mind of the average 
voter becomes centered upon candidates, State and county, 
for offices of a political nature, losing to a great extent 
interest in the judicial candidates. The ballots are usually 
long, and in the absence of special instructions many of 
the voters either take a chance shot when they reach the 
names of the judicial candidates, or frequently fail to vote 
at all. Indeed, lawyers themselves sometimes become so 
engrossed and wrought up in contests for Governor, Sen¬ 
ator and other political offices as to neglect to impress 
upon the layman the merits or demerits of the judicial can¬ 
didates. In my opinion, the ideal plan would be a seperate 
judicial primary a considerable time before or after the 
general primary. This would not only remove the judges 
to a great extent from politics, but the public mind would 
be focused upon them alone, and every one who would feel 

16 


interest enough in the question to turn out and vote would 
post himself in advance and vote intelligently. The cost 
of such a primary should not be much, especially at a time 
when all of the trial judges would also be nominated, but 
the expenditure of a little money would be well invested 
in a system which would guarantee the selection of the 
best men for the office of judge. 

COURT OF APPEALS. 

The Legislature of 1911, acting largely upon the sugges¬ 
tion of your Association, established, pursuant to the pro¬ 
vision of section 140 of the Constitution, a Court of Appeals 
composed of three judges, which was intended to relieve 
the Supreme Court. When this court was first created 
there was considerable difference of opinion as to the 
scope of its power and jurisdiction, and in fact there was a 
division of opinion on the subject among the judges of the 
Supreme Court. The question was finally presented and 
considered from three angles: First, That it had absolute 
and final jurisdiction co-ordinate with the Supreme Court, 
and as to which the Supreme Court would exercise no 
revisory power. Second, That it was a court of final ap¬ 
pellate jurisdiction except in so far as the Supreme Court 
might exercise its revisory powers expressly reserved unto 
it by section 140 of the Constitution, and which was 
largely discretionary with the Supreme Court, and which 
revisory powers the creative act contemplated to the ex¬ 
tent of maintaining harmony between the opinions of the 
two courts. Third, That said court was not only inferior 
to the Supreme Court, but all of its decisions should be 
reviewed and revised as to law and fact by the Supreme 
Court. When the matter was finally presented for deter¬ 
mination a majority of the Supreme Court, in the case of 
L. N. Ry. vs. Williams, 176 Ala. 631, adopted theory No. 
2 as the proper as well as the most practical solution of 
the question. To have adopted the first theory would not 

17 


only have been in the teeth of section 140 of the Consti¬ 
tution, but would have in fact established two separate and 
distinct Supreme Courts, each independent of the other. 
On the other hand, had the third contention been accepted, 
the Court of Appeals would have been a burden instead of 
a relief. To have held that all of its decisions should be 
reviewed de novo would render it a mere temporary stop¬ 
ping place between the trial court and the Supreme Court, 
and would, in effect, give parties two appeals in the small 
cases and only one in the more important ones. The re¬ 
sult has been that this court has to a great extent proven 
a considerable relief to the Supreme Court, though not as 
great as might be expected when the many applications for 
certiorari are considered. It is true that many of them are 
denied, but much time is nevertheless consumed in the con¬ 
sideration of same regardless of the results. The court, 
however, has been well manned and has been of considera¬ 
ble relief to the Suprme Court. 

R. W. Walkr, Ed de Graffenereid and John Pelham were 
appointed judges upon the creation of same. Judge de 
Graffenreid was appointed to the Supreme Court upon the 
death of Judge Simpson, and E. P. Thomas succeeded 
Judge de Graffenreid. Judge J. B. Brown became a mem¬ 
ber of the court by election, and B. P. Crum served as a 
member during a short period. Judges Pelham, Brown 
and C. R. Bricken were elected in the geenral election of 
1916. Judge Thomas resigned in 1916 and was succeeded 
by Judge R. V. Evans. Judge Pelham died in 1917 and was 
succeeded by W. H. Samford. Judge Brown was appoint¬ 
ed to the Supreme Court in 1919 to succeed Judge May- 
field, and was succeeded by H. P. Merritt. Hon. Alex. 
Troy, your Secretary, was made clerk of said court upon 
its organization, which position he now holds. 

JUNIUS M. RIGGS, MARSHAL AND LIBRARIAN 

Any sketch or synopsis of the Supreme Court would be 
incomplete which made no mention of the above named 

18 


Librarian and Marshal, who has spent the last half of the 
century in the service of the Court, and has thereby be¬ 
come a part of the judicial history of the State. Our 
library has increased ten-fold in volume under his adminis¬ 
tration. He has been faithful and efficient in the discharge 
of his official duties, and I am satisfied that every lawyer 
in Alabama will testify to his uniform courtesy and at¬ 
tention to them while attending court or using the library. 
I first met Mr. Riggs when appearing before the Supreme 
Court in my first case thirty years ago, and was surprised 
but pleased that he should be so kind, attentive and polite 
to a young country lawyer. I have known him well ever 
since and have come in daily contact with him for the past 
fifteen years, and have never known a more faithful public 
official. 


ROBERT F. LIGON, CLERK. 

This gentleman has been Clerk of the Court for nearly a 
quarter of a century, and has proven himself capable and 
efficient. He has relieved the Court, and especially the 
Chief Justice, of much of the detail which would neces¬ 
sarily have fallen to us with a less competent clerk. 

PAST, PRESENT AND FUTURE. 

I believe it was Abe Martin who said that “An optimist 
during this bone-dry period was the fellow who carried 
a corkscrew on his key ring,” and while perhaps not of 
Abe’s type I am by no means a pessimist, and hope that I 
shall never reach that mental condition of living solely in 
the past, seeing no good in the present, and entertaining no 
hope for the future. Our predecessors have unquestion¬ 
ably put our jurisprudence in the foremost rank, and the 
past has produced men like Chief Justices Bricked, Stone 
and McClellan, who not only measure up with the greatest 
State judges but either of whom would have adorned the 

19 


United States Supreme Court Bench, and it may be a long 
time before we have their equal; but they, nor the court 
when they were members thereof, were infalible or immune 
from mistakes. The list of overruled or qualified cases 
covering nearly one hundred pages of First Mayfield’s 
Digest will disclose the fact that the present or modern 
court does not monopolize in errors and mistakes. 

Again, while the strength of a chain is usually tested by 
its weakest link, when comparison is had between respec¬ 
tive courts the test should not be by measuring the weak¬ 
est member of one with the strongest of the other, for 
while we may have no member of the modern courts who 
possesses the mental endowments of a few of our judges 
of the past, I am not willing to concede or admit a general 
decadence of the judiciary or the legal profession gen¬ 
erally. If you admit the one you must admit the other, 
as our judges are selected from the lawyers and to a large 
extent through the influence of the lawyers, and in my 
opinion the present Bar of Alabama is much more ad¬ 
vanced and proficient than the Bar of the past. You may 
not perhaps have in your ranks as many men of the ora- 
atorical or forensic type as was developed during the 
early history of the State, but as all-round lawyers I do 
not think that the past can compare with the present. Our 
laws have advanced and progressed and our lawyers have 
kept pace with the times, and are well versed in practice 
and principles never known to or thought of by your pre¬ 
decessors. 

It was but a few years ago when we had no law school 
in Alabama, and almost anyone could be admitted to the 
Bar. Now we have a law school with a two or three year 
course, and in lieu of the old system of appointing a com¬ 
mittee on the circuit to crack jokes with an applicant and 
recommend his admission regardless of his legal knowl¬ 
edge, we have a State Board of Examiners who require a 
most thorough and rigid examination of the applicants. 

It should also be noted that during the first half of the 

20 


century a few lawyers usually residing at the capital did 
practically all of the practice before the Supreme Court. 
Now, the average lawyer from the remotest counties prac¬ 
tices before the Supreme Court without the aid or assist¬ 
ance of the old lawyers who had heretofore been regarded 
as specialists in handling cases before the appellate court. 

This is an advanced, and I might say an industrial and 
scientific age, and the present day lawyers and judges have 
problems to solve that were never encountered by the 
bench and bar of the past, and we can at least live in hope 
that our progeny may give us some credit for handing 
down to them arguments and decisions which may be of 
some benefit to the future. 

Again, many of you can recall that when an appeal was 
taken a few years ago parties had to wait a considerable 
time for a decision, seldom less than a year, sometimes sev¬ 
eral years. Now, the average case is decided by the Su¬ 
preme Court within a few months after the submission of 
the cause, it being the exception when there is a delay of 
a year, and with the co-operation and assistance of the 
Bar there is no reason why the work cannot be more ex¬ 
peditious and at the same time receive a more general con¬ 
sideration by the court. When counsel begin to attach 
less importance to practice and procedure than to the 
main meritorious legal questions involved in their cases 
and narrow the issues and present same by oral argument, 
the court can frequently decide the case immediately and 
prepare the opinion afterwards, thus making it the de¬ 
cision and opinion of the court rather than what is some¬ 
times termed a one-judge opinion. 

While we all look upon Marshall and Taney as the great 
exponents of our Constitution and laws during the forma¬ 
tive period of our government, and without intending to 
detract from their fame in the slightest, I believe that a 
close consideration by an unbiased lawyer of the opinions 
of our present Chief Justice White will convince that his 
is the master judicial mind of America, past and present. 

21 


Again, I do not think that the mantle of Wirt, Black, 
Brewster, Garland and Olney could have fallen upon a 
more worthy and capable man than our present Attorney 
General, A. Mitchell Palmer. He has handled our judicial 
department at this critical time with such firmness and 
ability as to demonstrate that he is not only the peer of 
any man who ever occupied that exalted office, but is big 
and broad enough for any office within the gift of the 
American people. 


CONCLUSION. 

And now, gentlemen of this Association, speaking for 
the Court, although our duties are not the same but in 
many respects variant and governed by different rules of 
action, yet they are in the same field, and we are all bound, 
or should be bound, by the great unchanging and unchan¬ 
geable code of morals, one of the precepts of which code, 
by way of eminence, has obtained the name of the “Gol¬ 
den Rule.” The duties of the Court are so admirably de¬ 
scribed by Sir Edward Coke in his Epilogue to the fourth 
part of his Institutes, in which he addresses the Judges and 
Justices of the Realm of England, that I beg leave to read 
them in his own quaint words. He says: “And you, hon¬ 
orable and reverend Judges and Justices, that do, or shall, 
sit in the High Tribunals and Courts and Seats of Justice, 
fear not to do right to all, and to deliver your opinion 
justly, according to the laws; for fear is nothing but a be¬ 
traying of the succors that reason should afford. And if 
you shall sincerely execute justice, be assured of three 
things: First, though some may malign you, yet God will 
give you his blessings; secondly, that though thereby you 
may offend great men and favorites, yet you shall have the 
favorable kindness of the Almighty and be His favorites; 
and lastly, that in so doing, against all scandalous com¬ 
plaints and pragmatical devices against you, God will de¬ 
fend you as with a shield.” 


22 


With such advice and instructions to guide and direct us, 
if honestly pursued and followed, there need be little'fear 
of falling into many or grave errors. 

Mr. Justice Blackstone speaks of our profession as 
highly honorable; and it has ever been distinguished for 
the talents, learning, and courteous manners of its mem¬ 
bers. Among those now in the meridian of professional 
life, as well as those just entering upon it, how does the 
heart swell with virtuous emulation at the mention of such 
names as the Walkers, Houston, Pryor, McClung, the 
Smiths, Hamiltons, Yancey, Watts, Tompkins, Percy, and 
a bright cloud of names that cannot here be mentioned, if 
not in every respect equally eminent, at least equally wor¬ 
thy of the admiration, not of the profession only, but of 
all good and great men. 

With such reflections as these to stir up in us a just and 
noble ambition, let us enter upon the new century with a 
true and earnest desire, with the blessing of a good Provi¬ 
dence, not only to merit and secure the good opinion of 
our fellow men, but, also, the approval of our own con¬ 
science. 


i 


23 


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